05/26/2015

Are we reaching a tipping point in the debate over physician aid in dying? A case before the courts in my homeland, New Zealand, combined with a recent New York TimesMagazine cover story about an Alzheimer’s patient choosing when to die, have me thinking that the argument for allowing people to receive help ending their lives before illness robs them of meaning is getting very strong indeed.

The Times story was a careful and beautifully written profile of Sandy Bem, a Cornell University professor emerita and psychologist who decided to die before Alzheimer’s destroyed her ability to participate in the relationships and activities she deemed essential to a good life. As Robin Marantz Henig reported, Bem, after receiving her Alzheimer’s diagnosis, “felt terror at the prospect of becoming a hollowed-out person with no memory, mind or sense of identity, as well as fury that she was powerless to do anything but endure it.” The main struggle, once Bem worked out how to kill herself, was determining when to exit. A right-to-die advocate interviewed for the article noted that a person like Bem must consider giving up “some period of time in which she might still be able to take some small pleasures in her life, just to be certain of ending it while she still could.”

In the end, it seems to me, Bem struck the balance perfectly. In the final weeks her friends noticed that she seemed to take no joy in her life anymore. Days before she drank from a glass containing pentobarbital and fell into her final sleep, she had failed to recognize her own daughter, asking a friend, “Who is that person’s mother?” While never addressing it explicitly, the story raises the question: Ought not Alzheimer’s patients, who might be years from death, be able to choose to die before their minds’ grip on reality—and more importantly, its grip on the contours of that person’s life—are completely frayed? Erik Parens and I considered his question in an essay for Time in 2011, and I am more persuaded now than I was then that provision must be made to help these patients die when they deem themselves ready.

This week the High Court in New Zealand is considering whether its criminal law prohibits a physician from assisting a terminally ill patient to die. If you’d asked me that question when I was in law school in the 1990s, I’d have said yes, unequivocally. As in other common law countries, New Zealand’s criminal law is codified in statute. Section 179 of the Crimes Act prohibits anyone from aiding or abetting suicide. A range of acts that would qualify as crimes are excused if the other party consents—sexual intercourse being a prime example—but section 63 of the Crimes Act specifically nullifies any consent given to death. You cannot argue, as Robert Baxter did in Montana in 2009, that the consent of the terminally ill person renders legal what would otherwise be a criminal act—or so I thought.

The New Zealand case is brought by Lecretia Seales, a 42-year-old woman who was diagnosed with brain cancer in 2011. Surgeons could not remove the tumor completely, and she underwent radiotherapy and chemotherapy, but in January she came to the end of her treatment options. Seales is now paralyzed on her left side and her health is rapidly deteriorating. She now has just months or weeks left to live. As her husband describes in their blog, she has known for a while that she will likely face “a drawn out, undignified death, after losing her mental faculties and all quality of life.” Like Bem (and very much like Brittany Maynard), Seales is deeply distressed by what her disease will do. She wants “to bring about her demise no sooner than the point that she determines she has no quality of life, and before she enters a long, pointless and wasteful period of suffering prior to her death.” And she wants to do it in an effective and non-violent way.

Seales is, as it happens, a lawyer, who has worked at some of New Zealand’s most prestigious law firms, as well as in the office of the Prime Minister and, most recently, at New Zealand’s law commission, where her job was to advise on law reform. Part of her argument is that prosecuting the physician who helps her die would be inconsistent with section 9 of New Zealand’s Bill of Rights Act. The Bill of Rights Act, passed in 1990, is sometimes said to be part of New Zealand’s “uncodified constitution.” But it would be a mistake to think it has the same legal status as the U.S.’s Bill of Rights. It is not entrenched (it can be repealed or amended by a simple majority in Parliament), nor is it the supreme law against which other law is measured. Such a status was proposed when the law was first introduced, but was rejected for its potential to undermine parliamentary sovereignty (the ability of the elected government to make law). Laws cannot be struck down because they are inconsistent with the Bill of Rights Act (although lawmakers are alerted when a proposed new law would be inconsistent with it). Instead, judges use the Bill of Rights Act to help them interpret other laws, privileging interpretations that are consistent with the various rights detailed in the Act. According to news reports, Seales will be arguing that the Act’s prohibition against “cruel, degrading or disproportionately severe treatment” should inform the court’s interpretation of the “suicide” as the word is used in the Crimes Act—with the result that helping a terminally ill patient to die would not constitute assisting or abetting suicide.

The argument is buoyed by a recent case in Canada, which is not binding on New Zealand but will surely be considered by its courts as persuasive. In Carter v. Canada the Supreme Court of Canada found that interpreting Canadian law to prohibit a physician from helping a terminally ill patient to die amounted to a breach of the Canadian Charter of Rights and Freedoms, which is similar in some respects to the New Zealand Bill of Rights Act. Some legal academics feel that the New Zealand courts are likely to go in a similar direction.

While I hope they do this for the sake of Seales and other New Zealanders currently in her position, the full legal resolution of this issue ought to come not from the courts but from Parliament in the form of a new, carefully drafted law, like those in the U.S. states of Oregon and Washington. A court decision cannot provide the kind of detailed guidance and regulatory oversight that legislation enables and that is necessary to prevent abuse of, and ensure public confidence in, a practice as morally significant as physician aid in dying. Such a law has been twice proposed in New Zealand (in the 1990s and early 2000s). With public opinion polls showing significant support from citizens and the interest and attention to the Seales case, the time may be ripe in New Zealand for another attempt. I hope that this law will provide not only for patients like Seales, whose illnesses meet the technical definition of terminal (they are six month’s from death), but also for patients like Sandra Bem, who will irrevocably lose their ability to recognize their loved ones well before they meet this limited definition. If New Zealand can work out how to address the needs of these patients, it could act as a model for other countries. Like Seales and others with terminal cancer, patients facing dementia also deserve to have their suffering addressed and their autonomy and dignity protected.

Josephine Johnston is director of research and a research scholar at The Hastings Center.